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Discovery Reform

Many recent cases have exposed the fact that federal Gavelprosecutors, whether through negligence or by design, all too often fail to abide by their constitutional duty to disclose favorable information to the defense. This is exacerbated by grossly inadequate state discovery statutes. NACDL has undertaken a number of research and advocacy projects to support reform in this area.  NACDL is likewise supporting the efforts of its state affiliates -- through advocacy, resources, and model legislation -- to enact fairer discovery rules and legislation.

In 2014, NACDL’s Board of Directors has approved a model open-file discovery law to promote nationwide discovery reform and improve the fairness of criminal justice systems by ensuring that the defense receives, promptly after arraignment and before entry of any guilty plea, all information generated during the law enforcement and prosecutorial investigation of a charged offense. Developed by NACDL’s Discovery Reform Task Force, the model law is the product of extensive research, discussion, and revision, and is drawn from best-practice provisions around the country.

In 2012, NACDL’s Board of Directors approved model legislation, developed by NACDL’s Discovery Reform Task Force, that would require disclosure of all evidence favorable to the accused, regardless of any assessment of whether the evidence was material.  This approach is embodied in the Fairness in Disclosure of Evidence Act, federal legislation introduced in 2012 by Senator Lisa Murkowski (R-AK), with bipartisan co-sponsorship and support from broad coalition ranging from the ACLU to the U.S. Chamber of Commerce.

Federal Criminal Discovery Blue Book

NACDL is seeking disclosure of the Justice Department’s Federal Criminal Discovery Blue Book.  This publication reportedly covers the law, policy, and practice of prosecutors’ disclosure obligations.  The U.S. Court of Appeals upheld the lower court’s decision that the publication is protected work product but remanded for a determination of whether any non-protected contents were segregable.  See the pleadings.

Recently Released Report

Material Indifference CoverOn November 17, at the National Press Club in Washington, DC, NACDL officially released its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. C-SPAN3's video coverage of the launch event is available here.

News Of Interest

"5th Circuit Tosses $2.3 Million Award to Former Inmate Over 'Brady' Violation," by John Council, Texas Lawyer, September 24, 2018.

"Appeals Court Finds No 'Brady' Fault in '98 Murder Trial, Restoring Conviction," by Andrew Denney, New York Law Journal , September 12, 2018.

"In reversal, Virginia courts to allow defendants to see police reports, witness lists," by Tom Jackman, Washington Post, September 6, 2018.

"Supporters of Prosecutorial Misconduct Commission Laud Approval While DAs Prepare Litigation," by Dan M. Clark, New York Law Journal, August 21, 2018.

"Authorities, defense lawyers and others divided on proposals to increase information shared prior to criminal trials," by Frank Green, Richmond Times-Dispatch, August 12, 2018.

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